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Max Lowry
Max Lowry, Advocate
Category: Property Law
Satisfied Customers: 1457
Experience:  LLB, 10 years post qualification experience
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Hi. I am in a real frustrating situation and am very unsure

Customer Question

Hi. I am in a real frustrating situation and am very unsure about my legal position. I have been renting my property out since September 2012. I paid an agency to find the tenant. On finding the tenant (which they placed alot of pressure on me to accept as I was unsure about them after meeting them) I had my solicitor draft up a AST agreement which was signed by all 3 people claiming to reside at the property.

From the first month rent was due we have had to chase them, but they were never more than 3 days late paying rent. The person taking on responsibility for paying rent (Elena) claimed she is unable to set up an SO with her bank, but as they were paying, I was not rigid about enforcing this. However from January, all of a sudden, they stopped paying rent and have never responded to any of my calls, lettters and they will not even answer the doors when we visit. I know they are there as I have been told by the neighbours they are about.

There is also another problem which is causing a nuisance with other neighbours - they are not clearing out their rubbish which is attracting all sorts of vermin and odours and is becoming a real problem for neighbours in the area.

My wife bumped into Elena 2 weeks ago, and when asked for her "new" telephone number, she tried to provide false numbers, which prompted my wife to ask her to call her directly on her phone so that she had her correct number. However they are still being unresponsive.

I feel my hands are completely tied as I am unsure at what point I have the right to enter the property. I have asked my solicitor to apply for a court order to evict them which, 3 weeks on, I understand she still has not done this. Please help!
Submitted: 3 years ago.
Category: Property Law
Expert:  Max Lowry replied 3 years ago.

Max Lowry :

Hi, welcome to Just Answer. I will help you with your question.

Max Lowry :

Was this an Assured Shorthold Tenancy (AST) for a minimum term of 6 months?

Customer:

It was a 12 month agreement

Max Lowry :

A minimum term of 12 months?

Customer:

yes

Max Lowry :

Okay. You have no right to re-enter the property without a Court order. You cannot get such an Order unless and until you serve a notice under the Housing Act 1988 referring to their failure to pay rent. This is called a section 8 notice.

Max Lowry :

This has to be served, after which you can issue proceedings after 2 weeks.

Max Lowry :

If the rent is more then 2 months in arrears, the Court MUST grant you possession. If less than this, then it has a discretion whether to grant you possession or not.

Customer:

OK - so in terms of the nuisance caused with the rubbish, there is nothing I can do about this? Even with the neighbours complaining?

Customer:

Tomorrow rent will be due and it will be the 3rd month which they have not paid

Max Lowry :

You can only seek possession based on it- in the same way as for rent arrears, this is a breach of the tenancy also, in that it's causing a nuisance to others.

Max Lowry :

Your solicitor should have served a s8 notice.

Customer:

Can you clarify what section 21 is based on?

Max Lowry :

If you speak to him tomorrow, insist this is done immediately, tell him time is of the essence, and you if he fails to do it by Thursday/Friday, this week, then you would go elsewhere.

Max Lowry :

S.21 is used for issuing possession proceedings at the end of the minimum term. There is no defence to this notice, but to use it, you'd have to wait until the end of the 12 months min term.

Max Lowry :

This is why it's usually best to always have 6 month agreements, and serve the s.21 notice on day one.

Customer:

OK - I'm just getting increasingly annoyed at having to chase my solicitor, leaving messages but receiving no call by the end of the day. It's yet another day wasted when this happens!

Max Lowry :

Then put something in writing, and make time of the essence. If they fail then to do as you've asked, you can move somewhere else. Also, you can complain to the solicitors firm and a higher up person will review your complaint. Failing that, you can complain to the Legal Services Ombudsman.

Customer:

I have also found that the credit checks carried out by the agency do not seem genuine - company tenants claims to work does not exist, the google maps image of the work address provided also shows a disused building

Max Lowry :

Well, this might be something to take up as another issue.

Customer:

I guess taking action against the agency will become an expensive process?

Max Lowry :

Not necessarily - if the claim is for less than £5,000 (which I assume it would be) you could use the small claims system and you'd not have to involve lawyers at all.

Max Lowry :

Things only get expensive when lawyers get involved really.

Customer:

OK. That's great, thanks for your help. Is there anything else I need to be aware of or you can advise me to do?

Max Lowry :

Not really, just make sure your solicitor gets back to you! Solicitors are expensive enough without you having to chase them - you ought to be getting a Rolls Royce service! Threaten a complaint to the Legal Ombudsman - I bet that gets a reply.

Max Lowry :

Good luck sorting this.

Max Lowry :

If you need further information, just let me know. Please do remember to rate my answer as highly as you can.

Customer:

Thank you so much. Just one more thing. On applying for S8 court order, how long does the process normally take, from granting possession to actually getting the tenants out?

Max Lowry :

Depends, it can sometimes take 4-6 months or so, but it depends whether they defend it or not and if so, on what grounds. If defended on points of law, the Court can easily determine these quickly on paper.

Customer:

is that minumum 4-6 months?

Max Lowry :

I'd say more average than minimum. It depends, some Courts are quicker than others, and your local solicitor will have better idea. But, this is why people often use both the s.8 and s.21 procedure together, because if the s.8 procedure isn't resolved by the end of the term for whatever reason, then you can rely on the s.21 procedure. To be perfectly honest, the s.8 procedure can be a complete nightmare. This is why everybody uses the s.21 procedure. If you've been advised by professionals to use a 12 mth term, then you might have a claim against them if they failed to tell you about the notice system. But, speak with your solicitor, and get them to serve both the s.8 and s.21 notices - or, at least discuss this with them.

Customer:

OK - this is sounding worse than i expected. I was never advised either way which would be the safest option to go with for the minimum term.

Customer:

Thanks for making clear my concerns and will make another attempt to get in touch with my solicitor tomorrow.

Max Lowry :

Yes, your solicitor needs to get on with this. I'd rather be honest with you about your situation, then you go away and find out from somebody else (or worse still, from using the Court system and learning there!)

Customer:

Thank you. My solicitor mentioned an "accelerated" procedure, but obviously there seems to be no such thing

Max Lowry :

That's only for the s.21 notice.

Max Lowry, Advocate
Category: Property Law
Satisfied Customers: 1457
Experience: LLB, 10 years post qualification experience
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